# Petition for Writ of Certiorari — Carpenter v. Erie Railroad

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1945%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1949
- **Citation:** 336 U.S. 904

## Text

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IN THE

Supreme Court of the United States

Ocrosrr Term—1948

<>
Lavriz J. CARPENTER,

Appellant,
—

Erm Ramroap Co.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT AND BRIEF IN
SUPPORT THEREOF

Laurie J. Carpenter,

Plaintiff in Person,
458 W. 35th St.,

New York 1, N. Y.

SUBJECT INDEX

Federal Reserve Bank vy. Atlanta Trust Co., 5 Cir.
F, 2d 283-286, 117 A. L. 1160

Goodell v. Gibbons, 91 Va. 608, 29 S. FE. 5
Hoehn v. Schenck, 221 App. Div. (N. Y.) 37
Inkawich v, State, 22 N. Y. S. 2d 761

Los Angeles County v. Metropolitan Casualty Co. of
N. Y., 26 P. 2d 699, 27 P. 24 914

Maylander vy. Fulton County G. & E. Co., 131 Mise.
(N. Y.) page 518

Moore v. Atkinson, Topeka and Santa Fe Railroad.
187 Okla. 534, 104 Pac. 236

ii

Samilow v. Peck, 257 App. Div. (N. Y.) 1073 -...............
Seaboard Air Line v. Brooks, 151 Ga. 625, 107 S. E. 878

United States ex rel. Louisville Cement Co. v. Inter-
state Commerce Commission, 246 U. S. 638, 62 L. ed.
5

914, 38 S. Ct. 408 ...
Virginia Ry. & Power Co. v. Ferebree, 78 S. E. 55/

Weinstein v. Blanchard, 162 A. 601-2, 109 N. J. L. 332
White v. Matthews, 221 App. Div. (N. Y.) 553

TABLE oF Laws
Federal Employers Liability Act, Chapter 685, Vol. 53,
Part 2, 1939 Statutes, Rule 8d
Corpus Juris

Civil Practice Act of N. Y.
Rule 106

Rule 107

-_ oy

IN THE

Supreme Court of the United States

Ocroser TeERM—1948

——
LAURIE J. CARPENTER,

Appellant,

a

Kriz Raitroap Co.
—>—

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT AND BRIEF OF PLAINTIFF
IN PERSON

PETITION FOR CERTIORARI

To the Honorables, The Chief Justice of the United
States and the Associate Justices of the Supreme Court
of the United States.

Your petitioner, Laurie J. Carpenter, respectfully sub-
mits his petition for a writ of certiorari to review the
decree of the United States Court of Appeals for the
Second Circuit in the above entitled case.

The Court of Appeals for the Second Circuit has
affirmed an order dismissing the complaint in the District
Court of the United States for the Southern District of
New York.

The jurisdiction of the Court is where a Court of Ap-
peals has rendered a decision in conflict with the decision

2

of another Court of Appeals on a different matter and
where a Court of Appeals has decided a Federal Ques-
tion in a way probably in conflict with applicable decisions
of this Court.

The only question presented is the time of accrual of a
cause of action under the Federal Employers Liability
Act.

The reason relied on is the decision in Federal Reserve
Bank vy. Atlanta Trust Co., 5 Cir. 91 F. 2d 283-286, 117
A. L. 1160. “Time begins to run under statutes of limi-
tation as to ‘Causes of action’ only after the right to prose-
cute them to a successful conclusion has accrued” and
the decision of this Court that “The time when a cause of
action accrues has been settled by repeated decisions of
this Court to be when a suit may be legally instituted.”
Ref. United States ex rel. Louisville Cement Co. v. Inter-
state Commerce Commission, 246 U. S. 638, 62 L. Ed. 914,
38 S. Ct. 408. Also two decisions of State Courts of New
York and New Jersey.

Laurie J. CARPENTER,

Plaintiff in Person,

458 W. 35th St.,
New York 1, N. Y.

IN THE

Supreme Court of the United States

Ocroser TeRM—1948

-—~o
Laurie J. CARPENTER,
Appellant,

—vV.—

Erez Raitroap Co.

<a

BRIEF IN SUPPORT OF PETITION

a of the Court

The jurisdiction of the Court is invoked for the reason
that the decision of the Court of Appeals is in conflict
with the decision of another Court of Appeals on a dif-
ferent matter and is probably in conflict with the applicable
decisions of this Court.

Statement of the Case

Plaintiff filed a complaint alleging that there had been
former actions that were unsuccessful for the reason
that the amount of damage was insufficient to recover and
alleging that an amount of damage that could be now
shown was sufficient to recover.

Defendant moved for summary judgment on the ground
that the pleadings and prior proceedings in the District
Court show that there is no genuine issue of any material

=

fact and Defendant is entitled to judgment as a matter
of law.

On the argument Plaintiff attempted to show that it is
a general rule in New York that a cause of action accrues
on the first discovery of facts creating a liability and an
order of non suit in a former action did not cover future
damage.

The Court questioned such a rule as applying to an
injury in New Jersey and entered judgment with a sig-
nature “Memorandum endorsed”.

Briets were filed on appeal but no oral argument by
the Plaintiff.

4

ARGUMEDT

Summary

1. Plaintiff has shown six cases where a cause of action
accrued at a time different from the first wrong and tend-
ing to show that a cause of action does not accrue until
it can be audited for the amount of damage. These six
cases would refer more cases.

2. There is a second negligence in this case, that of
the medical care assigned by the Defendant to accomplish
a cure in a reasonable length of time.

3. The former actions are void as a limitation is a
limitation on the right and not on the remedy and there
is no jurisdiction to apply an order of a former action

to this one. Yet a former action is sufficient ground to
demand admissions,

4. A jury might be designated to determine the time
of accrual of a cause of action as a finding of fact.

_—_ (es:

ARGUMENT

1. The six cases of a delayed accrual of a cause of
action are:

Condor Petroleum Co. v. Green, 164 S. W. 2d 713, page
718:

“Before it can be said a cause of action exists in a
legal sense, there must be such a mature right as may
be declared upon and maintained.”

In that case it is stated a cause of action could not be
determined until the price of oil could be determined.

Federal Reserve Bank v. Atlanta Trust Co., 5 Cir. 91 F.
2d 283-286, 117 A. L. 1160:

“Time begins to run under statutes of limitation as
to ‘Causes of action’ only after a right to prosecute
them to a successful conclusion has accrued.”

Los Angeles County y. Metropolitan Casualty Co. of
N. ¥., 26 P. 2d 699, 27 Pace. 2d 914. Page 700 of 26 Pace. 2d:

“A cause of action does not accrue until a party
owning it is entitled to begin and prosecute an action
thereon.”

United States ex rel. Louisville Cement Co. v. Inter-
state Commerce Commission, 246 U. S. 638, 62 L. ed. 914,
38 S. Ct. 408. Page 644 of 246 U.S.:

“The time when a cause of action accrues has been
settled by repeated decisions of this Court to be when
a suit may be legally instituted.”

om

Weinstein v. Blanchard, 162 A, 601-2, 109 N. J. L. 332.
Page 603 Atlantic or Page 338 New Jersey Law:

“* * * We believe the point that is dispositive of the
ease is, Could plaintiff have brought an action at the
time of the alleged act and recover * * *”

In the present case the Hudson County Cireuit Court
said in a former action (at the time) the Plaintiff could
not have recovered.

Inkawich v. State, 22 N. Y. S. 2d 761:

“Cause of action accrued when damages are ascer-
tainable.”

That case cites several others of a delayed acerual of a
cause of action.

2. There is a second negligence in this case. From
suits not wholly negligence, tort feasors are not combined
in a single action but in an action for negligence the party
liable for the original negligence is also liable for the
negligence of medical care.

In White v. Matthews, 221 App. Div. (N. Y.) page 553:

“* * * Undoubtedly one who is responsible by his
negligence for injuries sustained by another is not
only responsible for the immediate injuries received
but is also responsible for ‘he aggravation thereof
caused by unskilful surgical treatment * * * ”

There is a similar statement in Hoehn v. Schenck, 221
App. Div. (NX. Y.), page 374:

_—

“* * * Tl am not gainsaying the well settled proposi-
tion that where one is injured by the negligence of
another he is not responsible for the mistaken advice
of a competent physician upon which the injured
person acts in good faith and with ordinary care,
and that in such circumstances the negligent party is

liable for all the consequences following the wrong
** @y)

There would have been a more complete recovery in the
present case, if plaintiff had been laid up for a period
required for healing and a supplementary medicine given

to prompt healing.

3. The former actions are void. The opinion case
Moore v. Atkinson, Topeka and Sante Fe Railroad, 187
Okla. 534, 104 Pac. 236, quotes from Seaboard Air Linc
v. Brooks, 151 Ga. 625, 107 S. E. 878, which is in turn
from another case, Morrison v. B. € O. R. Co., 40 App.
D. C.

The doctrine is that a limitation on a right created by
statute can not be extended but a limitation on a remedy
to a right that existed before can be extended for sufti-
cient cause,

From that analogy former actions with a limitation on
the right are void. But in Federal Rule 8d an allegation
similar to a former action should be admitted.

The admission is based on Samilow v. Peck, 257 App.
Div. (N. Y.) 1073:

“Pleaded facts are deemed admitted on a motion to
dismiss complaint for insufficiency.”

8

Cole v. Leay, 212 App. Div., page 91, Maylander y.
Fulton County G. & E. Co., 131 Mise. (N. Y.), page 518:

“Facts alleged in complaint are deemed admitted
but conclusions of law or fact are not admitted.”

The present action is not exactly the same as the for-
mer action. In the opinion of the former action, Judge
Caffey states:

“* * * The Defendant has moved for judgment dis-
missing the complaint under Rules 106 and 107 of
the Civil Practice Act. I do not think a cause of
action is stated * * *”

4. <A jury can be designated to determine as a finding
of fact, the time of accrual of a cause of action, if need be.

By reference of Corpus Juris, a jury trial determined
the time of accrual of a cause of action in Virgima Ry.
and Power Co. v. Ferebee, 78 S. E. 557.

That case embodies a reference to Goodell v. Gibbons,
91 Va. 608, 22 S. E. 504, page 505:

“If the burden be upon the Plaintiff to show both
a cause of action and the time when it accrued, it
is difficult to perceive why the defense of the statute
of limitations cvuld not be made under a general
issue of nil debet or non assumpsit. If it be a plea
by way of confession and avoidance, and if it be neces-
sary that it should be pleaded specifically, by him who
relies upon it then the conclusion would seem to fol-
low necessarily that it behooves the pleader of the
statute to make out a case to which it clearly applies.”

—
9

Assuming that the present case comes within the cate-
gory of non assumpsit in the preceding paragraph, it is
sometimes said that every contract bears a secret covenant
that the other party will do nothing to prevent fulfilling.

The Defendant has compelled the Plaintiff to abide with
an injury without the necessary precautions for recovery,
by reason of neglect of medical care and it is alleged that
only now is it possible to audit the amount of damage
involved.

Statement of No Assignment of Errors

There was no assignment of errors in the District
Court of the United States for the Southern District of
New York,

Respectfully submitted,

Lavuriz J. CARPENTER,
Plaintiff in Person,
458 W. 35th St.,

New York 1, N. Y.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1945%3A1. Public record. Not legal advice.